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TMI Blog2024 (11) TMI 1110X X X X Extracts X X X X X X X X Extracts X X X X ..... 990, under Section 20(b)(ii) of the Narcotics Drugs and Psychotropic Substances Act, wherein an Australian national, Andrew Salvatore, was travelling from Thiruvananthapuram to Mumbai. While undergoing frisking at the airport, he was found to be in possession of 2 packets containing 55 grams and 6.6 grams of charas, which were kept concealed in the pocket of his underwear. On registration of the FIR, the person, along with the seized articles and personal belongings, were kept in the custody of the Valiyathura Police Station. 4. These seized articles were produced before the Judicial First Class Magistrate- II, Thiruvananthapuram. Accused No.1 was the Clerk, in the custody of whom, by virtue of a judicial order, the articles were entrusted. Thereafter, on 17.07.1990, an application was made on behalf of Andrew Salvatore, seeking the release of his personal belongings, which came to be permitted. 5. Accordingly, the articles were released to accused No.2/appellant in SLP(Crl.)No.7896 of 2023, who was the junior lawyer of the counsel appearing for Andrew Salvatore. Pertinently, one of the items of the case property, i.e., the underwear of Andrew Salvatore, was also released along w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ". Allegedly, these accused persons conspired together with the intention and preparation to cause the disappearance of evidence (Mo2). It stated that Accused No.1, Clerk handed over Mo2 to Accused No.2, Antony Raju, who made alterations thereto, ensuring that it would not fit Accused Andrew Salvatore. Cognizance of this final report came to be taken by Judicial First Class Magistrate Court-I, Nedumangad, as C.C. No.811/2014. 10. In the year 2022, both these accused persons preferred separate petitions (being Crl.M.C.No.7805/2022 & Crl.M.C.No.5261/2022) before the High Court of Kerela under Section 482 of the Cr.P.C. seeking quashing of the proceedings of Crime No.215 of 1994 and C.C.No.811/2014 on the ground that cognizance in the present case could not have been taken due to the bar created under Section 195(1)(b) of the Cr.P.C. 11. Resultantly, the impugned order came to be passed, allowing the petitions and thereby quashing the order taking cognizance in Crime No.215/1994 and all further proceedings pursuant to the same (C.C.No.811/2014) on the files of Judicial First Class Magistrate-I, Nedumangad. However, it directed the Registry of the Court to undertake appropriate measu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whether the High Court could have ordered de novo steps to be taken against the appellant? DISCUSSION AND ANALYSIS 15. Coming to the first issue at hand, concerning the locus standi of Mr. M.R. Ajayan, the appellant in SLP(Crl.)No.4887 of 2024, he has submitted that he is a socially spirited person and editor of "Green Kerela News". He had also filed an intervention application before the High Court of Kerala, resisting the quashing petition. 16. Antony Raju, Respondent No.2 in SLP(Crl.)No.4887 of 2024/ appellant in the appeal arising out SLP(Crl.)No.7896 of 2023, has objected to the locus of Mr. M.R. Ajayan, submitting that third parties cannot be permitted to prefer appeal in criminal proceedings and has sought to place reliance on judgments of this Court in P.S.R. Sadhanantham v. Arunachalam & Anr. (5-Judge Bench) (1980) 3 SCC 141, National Commission for Women v. State of Delhi & Anr. (2-Judge Bench) (2010) 12 SCC 599 and Amanuallah & Anr. v. State of Bihar & Ors. (2-Judge Bench) (2016) 6 SCC 699. 17. The locus of a private individual seeking the exercise of jurisdiction of this Court under Article 136 of the Constitution is no longer res integra. This Court in Natio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2004 SCC (Cri) Supp 445], Esher Singh [Esher Singh v. State of A.P., (2004) 11 SCC 585 : 2004 SCC (Cri) Supp 113], Rama Kant Verma [Rama Kant Verma v. State of U.P., (2008) 17 SCC 257 : (2010) 4 SCC (Cri) 734]. Further, it is pertinent here to observe that it may not be possible to strictly enumerate as to who all will have locus to maintain an appeal before this Court invoking Article 136 of the Constitution of India, it depends upon the factual matrix of each case, as each case has its unique set of facts. It is clear from the aforementioned case law that the Court should be liberal in allowing any third party, having bona fide connection with the matter, to maintain the appeal with a view to advance substantial justice. However, this power of allowing a third party to maintain an appeal should be exercised with due care and caution. Persons, unconnected with the matter under consideration or having personal grievance against the accused should be checked. A strict vigilance is required to be maintained in this regard." ( Emphasis supplied ) 18. More recently, similar to the case at hand, in Naveen Singh v. State of U.P. (2- Judge Bench) ( 2021 ) 6 SCC 191, while considering ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laint in writing of that Court or by such officer of the Court as that Court may authorize in writing in this behalf, or of some other Court to which that Court is subordinate. (2) Where a complaint has been made by a public servant under clause (a) of Sub-Section (1) any authority to which he is administratively subordinate may order the withdrawal of the complaint and send a copy of such order to the Court; and upon its receipt by the Court, no further proceedings shall be taken on the complaint; Provided that no such withdrawal shall be ordered if the trial in the Court of first instance has been concluded. (3) In clause (b) of Sub-Section (1), the term "Court" means a Civil, Revenue or Criminal Court, and includes a tribunal constituted by or under a Central, provincial or State Act if declared by that Act to be a Court for the purposes of this section. (4) For the purposes of clause (b) of Sub-Section (1), a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from appealable decrees or sentences of such former Court, or in the case of a civil Court from whose decrees no appeal ordinarily lies, to the principal Court having ordinary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eing made to it or suo-motu, whenever the interest of justice so demands. ix. In such a case, where the High Court as a superior Court directs a complaint to be filed in respect of an offence covered under Section 195(1)(b)(i), the bar for taking cognizance, will not apply. 22. In the instant case, the High Court, on the basis of the above bar on taking cognizance, has quashed the order taking cognizance and proceedings emanating therefrom. We are of the considered view, that this approach was not correct for the reasons set out below. 23. At this stage, we must reiterate and re-emphasize the genesis of the proceedings in this case. On a perusal of the FIR, it is clear that based on the letter issued by the Kerala High Court dated 27th September, 1994 and by the District Judge, Trivandrum, the offence was registered against the accused persons. The criminal proceedings clearly do not arise from a complaint by a private individual. 24. Elaborating the law to the attending facts, we notice that this Court in Perumal (supra) had observed: "19. Therefore, all that sub-section (4) of Section 195 says is that irrespective of the fact whether a particular court is subordinate to an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herein, stating that in this case, the final report came to be filed on the basis of an administrative order and not a judicial one. We are unable to agree with the reasoning of the High Court on this aspect. 27. As discussed above, the initiation of the present proceedings in the present case, was from the judgment and order dated 5thFebruary, 1991 of the Kerala High Court in Criminal Appeal No. 20 of 1991, in acquitting Andrew Salvatore directing the matter of planting of Mo2 be positively looked into. This was followed by an investigation by the vigilance officer of the Court. Therefore, in the impugned order, the High Court has erroneously observed that there is no judicial order concerning the present proceedings. 28. The High Court also distinguished Sivamani (supra) on the ground that the public interest present therein is absent in the present case. This is the second aspect that must be clarified. The alleged act is a glaring occurrence where the process of criminal prosecution stands interfered with, impugning upon the sanctity of judicial proceedings, resulting in a travesty of justice. Such actions not only erode public trust in the judicial system but compromise the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 24 SCC OnLine SC 984, this Court summarized the power of an Appellate Court to order retrial: "8. Every trial is a march towards the truth. It is the primary duty of the Court to search for the truth using the procedural law as its tool. Such a procedural law may have a substantive part extending certain inalienable rights to both, the accused and the victim. By non-compliance of the procedural law, justice cannot be allowed to derail. Anyone, who complains of an unfair trial, is duty bound to satisfy the Court that he stands prejudiced by it. This does not mean that a Court can be lackadaisical in following the rules and procedures meant to ensure justice. 9. A fair trial is the heart and soul of criminal jurisprudence. The principle of democracy lies in a fair trial. It is not only a statutory right, but also a human right, which would be violated when the safeguards provided under the Statute are not followed. The absence of a fair trial would seriously impair and violate the fundamental rights guaranteed under Articles 14 and 21 of the Constitution of India. What is important to be seen is the existence of a failure of justice, which is obviously one of fact. A mere violat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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